Justice Kennedy’s Impact on Employment Law

With the U.S. Supreme Court term winding down its term, the biggest news is the retirement of Justice Anthony Kennedy, effective July 31. Kennedy made a significant impact on the court, frequently casting socially progressive votes despite his generally conservative views.

His decisions in gay rights cases serve as examples of Kennedy’s even-handedness in employment discrimination, compared to other conservative justices. His most visible such decisions — Romer, Lawrence, Windsor, and Obergefell — gave employee-rights observers hope for a favorable decision on whether Title VII of the Civil Rights Act protects against sexual orientation discrimination, should the issue come before the court.

Kennedy’s openness to ideas and points of view set him apart from his colleagues. Plaintiff’s attorney Paul Mollica, author of numerous friend-of-the-court briefs before the high court in employment cases, said, “He was the least predictably pegged of the justices. He was the one who needed to be persuaded.”

In general, however, Kennedy voted with the conservative bloc of the court, and his legacy in the employment law arena will be more pro-employer than pro-employee. The same day that he announced his retirement, in fact, he was one of five justices that voted to overturn a longstanding precedent that required government employees who are not union members to pay fees to union representatives.

The high court agreed — prior to Kennedy’s announcement — to review four labor and employment cases in the upcoming term:

New Prime Inc. v. Oliveira asks if interstate truck drivers must arbitrate their federal wage-and-hour claims and whether the job of a court or arbitrator is to decide if a Federal Arbitration Act exemption for transportation workers applies to drivers’ employment contracts.

Mount Lemmon Fire District v. Guido asks whether state political subdivisions with less than 20 employees must adhere to discrimination protections under the Age Discrimination in Employment Act.

BNSF Railway Co. v Loos asks if a railroad’s payment to an employee for lost work time is taxable under the Railroad Retirement Tax Act.

The outcome of these cases could depend on whether, and how quickly, President Trump’s nominee, Judge Brett Kavanaugh, receives confirmation. If the remaining justices proceed before the seating of a new conservative justice, these cases could end up in a 4-4 split decision, meaning the appeal’s court ruling stands.

We will be watching the upcoming confirmation battle carefully and are happy to discuss these and other employment law issues anytime. We look forward to an interesting few months.